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Dr. Mohammad Shadab Khan v. State Of U.p. Thru. Prin. Secy., Deptt. Of Higher Education Lko. And 5 Others

Dr. Mohammad Shadab Khan v. State Of U.p. Thru. Prin. Secy., Deptt. Of Higher Education Lko. And 5 Others

(High Court Of Judicature At Allahabad, Lucknow Bench)

WRIT - A No. - 5167 of 2023 | 26-07-2023

Abdul Moin, J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no. 1 and Shri H. G. S. Parihar, learned Senior Advocate assisted by Shri Tanveer Ahmad Siddiqui, learned counsel for the respondents no. 2 to 5.

2. No notice be issued to respondent no. 6 taking into consideration the nature of order proposed to be passed.

3. With the consent of learned counsel appearing for the contesting parties, the writ petition is finally being disposed of.

4. Under challenge is the show cause notice dated 10.06.2023 issued by the respondent no. 4, a copy of which is annexure 1 to the petition. By the said show cause notice the petitioner has been asked to submit his reply as to why disciplinary action should not be taken against him.

5. A preliminary objection has been taken by Shri H G S Parihar, learned Senior Advocate, that no challenge to the show cause notice would lie in as much as the petitioner has been asked to submit his reply and thus the Writ Petition deserves to be dismissed on this ground alone.

6. Responding to that, the argument of learned counsel for the petitioner is that the show cause notice has been challenged on the basis of judgement of Hon'ble Supreme Court in the case of Siemens Ltd vs State of Maharastra and others reported in (2006) 12 SCC 33 [LQ/SC/2006/1204] on the ground that the show cause notice has been issued under the provisions of Clause 31(4) of the Statutes of the Integral University, Lucknow. It is submitted that as the said clause pertains to non-teaching staff consequently the said show cause notice could not have been issued and as such the said show notice being patently without jurisdiction, accordingly the principles of law laid down by Hon'ble Supreme Court in the case of Siemens Ltd (supra) would be attracted.

7. On the other hand, Shri H. G. S. Parihar, learned Senior Advocate has argued that it is within the power of the University to issue a show cause notice to any of its employees.

8. Having heard learned counsel for the parties and having perused the record what emerges is that clause 31 of the Statues of the Integral University pertains to disciplinary action against non teaching employees. Admittedly the petitioner is an Associate Professor in the University and such he would not fall within the ambit of non teaching employee so as to give the power to the respondent no. 4 to issue a show cause notice under the said provision.

9. Even if the argument of the Senior Advocate that the university has power to issue such a notice is taken at its face value even then learned Senior Advocate is unable to indicate any provision whereby a show cause notice could be issued to a teaching employee or whether a show cause notice is a sine qua non prior to initiation of disciplinary proceedings.

10. However, learned Senior Advocate has contended that in the 48th meeting of the Executive Counsel held on 22.05.2023 an amendment to Clause 30(4) of the Statutes have been incorporated whereby the vice chancellor on behalf of the executive counsel can authorize any officer to issue a show cause notice to any employee for any incident of misconduct or defamation of university or violation to service rules etc.

11. However the Court is of the view that as the said amendment has only been approved by the executive counsel on 22.07.2023 and the show cause notice, as challenged in the instant petition, is of 10.06.2023 as such the said amendment will not have retrospective effect, more particularly, when the said amendment does not provide so.

12. Considering the aforesaid as well as the law laid down by Hon'ble Supreme Court in the case of Siemens Ltd (supra) where a show cause notice can be challenged on the same being patently without jurisdiction what the Court finds is that the impugned show cause notice has been issued by the respondent no. 4 without any provision to do so. As such the preliminary objection is rejected.

13. Keeping in view the aforesaid, the writ petition is allowed.

14. The show cause notice dated 10.06.2023, a copy of which is annexure 1 to the petition, is quashed.

15. Consequences to follow.

16. However the respondent university would be at liberty of proceeding against the petitioner.

Advocate List

  • Ghaus Beg

  • C.S.C.,Tanveer Ahmad Siddiqui

Bench
  • Hon'ble Justice Abdul Moin
Eq Citations
  • 2023/AHC-LKO/49021
  • LQ/AllHC/2023/5119
Head Note

A. Education and Universities — Universities — University Statutes — Show cause notice issued under C. 31(4) of Statutes of Integral University, Lucknow — Validity of — Held, C. 31 of Statutes pertains to disciplinary action against non teaching employees — Petitioner is an Associate Professor in the University and such he would not fall within the ambit of non teaching employee so as to give the power to respondent no. 4 to issue a show cause notice under the said provision — Even if the argument of the Senior Advocate that the university has power to issue such a notice is taken at its face value even then learned Senior Advocate is unable to indicate any provision whereby a show cause notice could be issued to a teaching employee or whether a show cause notice is a sine qua non prior to initiation of disciplinary proceedings — However, in the 48th meeting of the Executive Counsel held on 22.05.2023 an amendment to C. 30(4) of Statutes have been incorporated whereby the vice chancellor on behalf of the executive counsel can authorize any officer to issue a show cause notice to any employee for any incident of misconduct or defamation of university or violation to service rules etc. — However, as the said amendment has only been approved by the executive counsel on 22.07.2023 and the show cause notice, as challenged in the instant petition, is of 10.06.2023 as such the said amendment will not have retrospective effect, more particularly, when the said amendment does not provide so — Held, considering the aforesaid as well as the law laid down by Supreme Court in Siemens Ltd., (2006) 12 SCC 33 where a show cause notice can be challenged on the same being patently without jurisdiction what the Court finds is that the impugned show cause notice has been issued by respondent no. 4 without any provision to do so — Integral University, Lucknow — Statutes, C. 31(4) B. Education and Universities — Universities — University Statutes — Show cause notice issued under C. 31(4) of Statutes of Integral University, Lucknow — Validity of — Held, C. 31 of Statutes pertains to disciplinary action against non teaching employees — Petitioner is an Associate Professor in the University and such he would not fall within the ambit of non teaching employee so as to give the power to respondent no. 4 to issue a show cause notice under the said provision — Even if the argument of the Senior Advocate that the university has power to issue such a notice is taken at its face value even then learned Senior Advocate is unable to indicate any provision whereby a show cause notice could be issued to a teaching employee or whether a show cause notice is a sine qua non prior to initiation of disciplinary proceedings — However, in the 48th meeting of the Executive Counsel held on 22.05.2023 an amendment to C. 30(4) of Statutes have been incorporated whereby the vice chancellor on behalf of the executive counsel can authorize any officer to issue a show cause notice to any employee for any incident of misconduct or defamation of university or violation to service rules etc. — However, as the said amendment has only been approved by the executive counsel on 22.07.2023 and the show cause notice, as challenged in the instant petition, is of 10.06.2023 as such the said amendment will not have retrospective effect, more particularly, when the said amendment does not provide so — Held, considering the aforesaid as well as the law laid down by Supreme Court in Siemens Ltd., (2006) 12 SCC 33 where a show cause notice can be challenged on the same being patently without jurisdiction what the Court finds is that the impugned show cause notice has been issued by respondent no. 4 without any provision to do so — Integral University, Lucknow — Statutes, C. 31(4)